' Through this revision petition the order of District Court of Criminal Jurisdiction Rawalkot-Poonch, dated 17-6-1999 whereby the accused respondent was released on bail by the said Court is under challenge.
2. A Case No,34 of 1998 for offence under section 302, A.P.C. Was registered at Police Station Rawalakot-Poonch on a'report of the complainant Muhammad Farooq Khan on 18-3-1998 at 11-45 p.m. At night while he was sleeping at his house. Mr. Arshid Mahmood son of Muhammad Siddique informed him that he alongwith Aftab son of Muhammad Aziz, Zafar Hamid son of Muhammad Siddique and Janat Hussain son of Muhammad Afzal were at the house of the paternal-uncle of Mr. Aftab namely Muhammad Rehman on 17-3-1998. While coming back to their houses at about 11 p.m. At night, they reached at the road side near their houses. Muhammad Afzal whose house was situated nearby, came out of his house and asked them to prove their identity. On this, Mr. Aftab told his name and Mr. Afzal asked them not to run away but they did not obey him and began to move on. Mr. Muhammad Afzal who was armed with .12 bore gun, made fire shot on Mr. Aftab which hit him on the right side of his back. Mr. Aftab fell down on the road and died on the spot.
Muhammad Afzal also fired three shots in order to kill the companies of the deceased but these shots remained ineffective. According to the report, the complainant after this information, arrived at the spot where he found the dead body of Mr. Aftab lying on the road. The motive disclosed in the report was a dispute over a piece of land as the boundaries of the fields of accused and deceased were adjacent and they often had dispute over it. This incidence, according to the report, was witnessed by Arshid Mahmood, Zafar Hamid and Janat Hussain.
3. The case was investigated by the concerned police and after completion of the investigation, the accused-respondent was found guilty of the offence alleged in the report and he was sent to face the trial before District Court of Criminal Jurisdiction, Rawalkot-Poonch.
4. The evidence of all the eye-witnesses alongwith two recovery witnesses has been recorded so far. The accused respondent made a request to the trial Court through a bail application for enlargement and his request was honoured by the said Court and he was released on bail through the impugned order. Hence this revision petition to recall the said order.
5. The learned counsel for the complainant argued that the reasons given by the trial Court to enlarge the accused-respondent on bail were flimsy one and the trial Court while recording the impugned order travelled beyond the settled law on the subject and thus, offended the principles governing the bail matters. According to the learned counsel the accused-respondent was nominated in the F.I.R. Lodged without any delay. His role was unambiguous. The version given in the F.I.R. Stood corroborated by direct and circumstantial evidence, the learned counsel argued.
The accused-respondent was prima facie linked with the alleged offence for which the punishment provided under law is death penalty or life imprisonment and as such the case against the accused respondent was covered by the prohibitory clause of section 497, Cr.P.C., the learned counsel contended.
6. On the contrary it was argued that the revision petition was not maintainable as the petitioner did not qualify himself to be an aggrieved person and he was simply an informant on whose information the investigation was set in. He was a witness only and after recording his statement in the trial Court he had done his job and he was nobody to challenge the order recorded in favour of the accused-respondent. It was also contended by the learned counsel for the accused- respondent that the prosecution story as put-forward before the Court was doubtful and the trial Court had rightly allowed the bail application by giving the benefit of doubt to the accused- respondent.
7. The impugned order was examined in the light of the evidence brought on record by the prosecution.
8. The preliminary objection raised by the learned counsel for the respondent about the maintainability of the present revision is not sustainable in the eye of law. The learned counsel resorted to a judgment of this Court titled Muhammad Kabir v. Shah Alam and others PLJ 1999 Sh.C.
(AJK) 141 and by analogy tried to convince the Court that the present petition being filed by a person other than an aggrieved party was not competent. It is correct that it has been held by this Court in the aforesaid case and in some other cases also while deciding the acquittal appeal that the complainant who does not qualify himself to be an aggrieved person is not competent to file an appeal against an acquittal order.
9. Originally the right to file an appeal against an acquittal order was given to the State only but later on in Pakistan through an amendment in section 417, Cr.P.C. It was given to the aggrieved party also. But in Azad Kashmir, according to my humble knowledge, this amendment has not been effected as yet. However, after the enforcement of Islamic Penal Laws in Azad Kashmir the proposition whether or not the complainant or any aggrieved party was competent to file appeal against an acquittal came before the apex Court of the State. It was held by the Honourable Supreme Court that the complainant or any aggrieved person was competent to challenge the acquittal order in shape of appeal. Therefore, it stood settled by the Supreme Court that an acquittal order could be challenged by the State, complainant or any aggrieved party. But an ambiguity still remained as to whether or not a. Complainant who does not qualify himself to be an aggrieved person is competent to file an appeal against an acquittal. The proposition came before a Division Bench of this Court in the case titled Muhammad Kabir v. Shah Alam and others PLJ 1999 Sh.C. (AJ&K) 141 and this Court held that the complainant who is simply an informant on whose information the investigation set-in and who does not come under the definition of 'Wali' is not competent to file an appeal against an acquittal order.
10. In the instant case a bail order recorded in favour of the accused-respondent is under challenge through a revision petition by the complainant who is simply an informant and who obviously is not an aggrieved person. The impugned order is not appealable and it is only open to revision. The question is whether a revision petition against a bail order recorded in favour of the accused-respondent can be assailed by any other person except the State or any aggrieved person as neither the State nor any aggrieved person has challenged the impugned order.
11. Under section 25 of Islamic Penal Laws Enforcement Act, 1974 any interim order except the final judgment is open to challenge through a revision petition before any competent forum within sixty days. The impugned order is certainly not a final judgment under section 369, Cr.P.C. And comes within the purview of an interim order open to challenge through a revision petition. The perusal of section 25 of I.P.L. Shows that it is not clear as to who is competent to challenge such-like orders.
Evidently in absence of any specific provision in this regard we have to revert back to Criminal Procedure Code and the relevant provisions is section 439, Cr.P.C. Of the said Code wherein it is provided that this Court is competent to revise any order if it suffers from any illegality or defeats the ends of justice but not the one whose a right of appeal is provided. This section gives inherent powers of revision to this Court and under this provision of law this Court is competent to undo any wrong even without an application by someone by taking suo motu notice if it is in the interest of justice.
12. The present petition is a revision petition under section 25 of the Islamic Penal Laws read with section 439, Cr.P.C. The right of appeal under section 25, I.P.L. Read with section 417, Cr.P.C. Is definitely a statutory right which cannot be extended to every one but to invoke the revisional jurisdiction of this Court cannot be restricted to a particular person and this Court by exercising its inherent powers under section 439, Cr.P.C. Is competent to undo a wrong on the application of somebody or even by taking suo motu notice of it. Therefore, the present petition being a revision petition under section 25 of read with section 439, Cr.P.C. Is maintainable in the eye of law.
13. Coming to the merits of the case it is found in the light of tentative examination of the evidence that the accused petitioner is prima facie linked with the alleged offence. He is nominated in the F.I.R. Which keeping in view the distance from place of occurrence to the police station was lodged within reasonable time. His role is clear and it stands supported by direct and circumstantial evidence. The case against him is covered by prohibitory clause of the relevant provision of law regarding the bail matters.
14. The statements of material witnesses have also been recorded by the trial Court. The grounds on which the trial Court allowed the bail application do not justify the impugned order. The main ground given by the trial Court was that it was not possible for the companions of the deceased to go without receiving any injury. According to the trial Court, the deceased was gunned down by .12 bore gun and three other shots were made by the same gun but not a single pellet hit the companions who were travelling with a little distance inter se. This objection when examined in the light of site sketch, the post-mortem report and direct evidence finds no support. The companions of the deceased were travelling with a distance of more than 10 feet inter se. According to the post- mortem report the distance from where the fire was made was more than 3 feet and less than 9 feet as Wad was present in the wound. It prima facie shows that the pellets of the cartridge used to hit the deceased were not expected to spread to the extent to injure the companions of the deceased who were walking at the distance as indicated above. Another ground which prompted the trial Court to allow the bail application was that the real uncle of the deceased did not file the F.I.R. As he was present at the relevant time and in his presence the F.I.R. Was filed by another person. This fact, in the estimation of learned trial Court, was sufficient to release him on bail. This argument is also without substance as it is not necessary for the close relatives to file F.I.R. As the report for commission of any cognizable offence can be given by any person. The other reasons recorded by the trial Court are also flimsy and cannot be allowed to stand. Moreover, the argument and the reasons given by the trial Court require deeper appreciation of evidence which is not permissible at this stage.
' The result is that, with the above observation, the impugned order stands recalled and the bail application by accused-petitioners is rejected.